1900132 (Refugee)

1900132 (Refugee) [2024] AATA 2486 (8 April 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1900132
COUNTRY OF REFERENCE:                   Malaysia
MEMBER:Wayne Pennell
DATE:8 April 2024
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicants Protection visas.

Statement made on 08 April 2024 at 10:18pm
CATCHWORDS
REFUGEE – Protection Visa – Malaysia – religion – converted from Catholic to Muslim – effect of disability on employment – economic hardship – first applicant returned to Malaysia – did not experience harm – applicant does not have a well-founded fear of persecution – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 423, 424, 499
Migration Regulations 1994, Schedule 2
CASES
Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for a review of a decision made by a delegate of the Minister for Home Affairs (‘the delegate’) to refuse to grant the applicants protection visas under section 65 of the Migration Act 1958 (Cth) (‘the Act’).[1]
[1]The delegate’s decision of 14 December 2018.
The applicants, who claim to be a citizens of Malaysia, applied for a protection visa.[2] The delegate was not satisfied there were substantial grounds for believing that, as a necessary and foreseeable consequence of them being removed to Malaysia, there was a real risk they would suffer significant harm, and their application was refused on the basis that they were not refugees as defined by the Act,[3] and therefore they were not persons in respect of whom Australia had protection obligations.[4]
[2]The applicant’s application was received by the Department on 10 May 2018.
[3]Migration Act 1958 (Cth), s 5H.
[4]Migration Act 1958 (Cth), s 36(2)(a), s 36(2)(aa).
The applicants filed an application (‘review application’) with the Tribunal to review the delegate’s decision.[5] Subsequent to filing that application, the first applicant departed Australia on [date] April 2020 and returned to Malaysia. The second applicant remained in Australia and at a subsequent time,[6] the Tribunal wrote to her advising that it had considered all the material before it relating to the review application but it was unable to make a favourable decision on that information alone. She was invited to give oral evidence and present arguments at a hearing scheduled for 8 April 2024.[7]
[5]The applicant’s review application was filed with the Tribunal on 3 January 2019.
[6]On 16 February 2024.
[7]Hearing scheduled for 8 December 2023.
The second applicant accepted the invitation and attended the Tribunal at the time, date and place of the scheduled hearing. The Tribunal notes that she was not represented during the review process or at the hearing and because of her [Disability 1], the second applicant was [provided with appropriate assistance].
CRITERIA FOR A PROTECTION VISA
The measures for a protection visa are set out in the Act[8] and Schedule 2 to the Migration Regulations1994 (Cth) (‘the Regulations’). An applicant for the visa must meet one of the alternative criteria as provided in the Act.[9] That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
[8]Migration Act 1958 (Cth), s 36.
[9]Migration Act1958 (Cth), s 36(2)(a); s 36(2)(aa); s 36(2)(b) or s 36(2)(c).
The Act provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister, or the Tribunal at a review hearing, is satisfied Australia has protection obligations because the person is a refugee.[10]
[10]Migration Act1958 (Cth), s 36(2)(a).
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country.[11] In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country.[12]
[11]Migration Act1958 (Cth), s 5H(1)(a).
[12]Migration Act1958 (Cth), s 5H(1)(b).
The Act also provides that a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, and there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country.[13] Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in the Act, which are extracted in the attachment to this decision.[14]
[13]Migration Act 1958 (Cth), s 5J(1).
[14]Migration Act 1958 (Cth), s 5J(2) – s 5J(6) and s 5K – s 5LA.
If a person is found not to meet the refugee criterion in the Act,[15] that person may nevertheless meet the criteria for the grant of the visa if they are a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that they will suffer significant harm (‘the complementary protection criterion’).[16] The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are expressly provided in the Act, which are extracted in the attachment to this decision.[17]
[15]Migration Act 1958 (Cth), s 36(2)(a).
[16]Migration Act 1958 (Cth), s 36(2)(aa).
[17]Migration Act 1958 (Cth), s 36(2A) and s 36(2B).
The Act makes provision for, and clearly defines that a non-citizen will suffer significant harm if: they will be arbitrarily deprived of their life; or the death penalty will be carried out on them; or they will be subjected to torture; or they will be subjected to cruel or inhuman treatment or punishment; or they will be subjected to degrading treatment or punishment.[18]
[18]Migration Act 1958 (Cth), s 36(2A). Torture, cruel and inhuman treatment or punishment and degrading treatment and punishment are further defined in the Migration Act 1958 (Cth), s 5(1).
Notwithstanding that, the Act goes on to provide for certain circumstances where there is taken not to be a real risk that they will suffer significant harm in a country, which arise if the Minister is satisfied: that it would be reasonable for them to relocate to an area of the country where there would not be a real risk that they will suffer significant harm; or they could obtain, from an authority of the country, protection such that there would not be a real risk that they will suffer significant harm; or the real risk is one faced by the population of the country generally and is not faced by them personally.[19]
[19]Migration Act 1958 (Cth), s 36(2B).
COUNTRY OF REFERENCE AND APPLICANTS’ IDENTITY
The applicants claimed to be citizens of Malaysia and provided a copy of their passport to the Department to authenticate this claim. The Tribunal accepts their identity and, based on the evidence they provided, and in the absence of any other evidence to the contrary, the Tribunal finds that Malaysia is their country of nationality and their receiving country for the purposes of the refugee and complementary protection assessments.[20]
[20]Migration Act 1958 (Cth), s 5H, s 36(2)(a) and s 36(2)(aa).
Based on the evidence, the Tribunal is satisfied the applicants do not have a right to enter and reside in any other country. Therefore, the Tribunal finds that they are not excluded from Australia’s protection obligations.[21]
[21]Migration Act 1958 (Cth), s 36(3).
MANDATORY CONSIDERATIONS
In accordance with Ministerial Direction No.84 made under the Act,[22] the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and the country information assessments prepared by the Department of Foreign Affairs and Trade (‘DFAT’) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
APPLICANTS’ BACKGROUND AND CLAIMS
[22]Migration Act 1958 (Cth), s 499.
Background
The applicants, who are citizens of Malaysia, were each granted an Electronic Travel Authority (subclass 601) (‘Tourist visa’) on 14 February 2018.[23] They arrived together in Australia on [date] March 2018 subject to the provisions of their visas, which expired on [date] June 2018.
[23]A subclass 601 visa is for persons who wish to visit Australia temporarily as a tourist or to engage in business visitor activities such as attending a conference, attending a business meeting etc.
Both applicant are from [Town 1] in Malaysia. When asked about her family in Malaysia, she said that both her father and mother are living in [Town 1] and she thought that her father was working on a farm. She is the second oldest of six siblings and is the only person in the family with a disability. As already indicated, the first applicant is the second applicant’s father and he has already returned to Malaysia.
The second applicant told the Tribunal that she [has Disability 1] having suffered an illness when she and about [age]. [Deleted]. After arriving in Australia, both applicants lived in Adelaide for some time before the second applicant relocated by herself to [City 1]. She later saw a Malaysian man, who [also had Disability 1] posting something on Facebook. Her experience was that there was not many young Malaysians in Australia who had as similar disability as her, so she reached out to him. They started a relationship and later married. They are now the parents of a child born in [year] and she is currently pregnant with their second child, who is due to be born in [month, year].
Protection claims
On 10 May 2018, the applicants lodged with the Department an application for Protection visa. The protection claims described in their application were that they had a well-founded fear of returning to Malaysia because of the favouritism in Malaysia. They claimed that the second applicant, who was aged [age] at the time of the application being lodged, has [Disability 1], and in Malaysia persons like her who have such disability would not be able to be given a chance of gaining employment. Because of that reason, they travelled to Australia for a chance of changing their lives, and they came to Australia out of a favour by the first applicant to his daughter, the second applicant. They concluded their protection claims by saying that the second applicant wanted to gain some experience in Australia.
Within their Protection visa application, it is indicated that both applicants were Christians. At the subsequent review hearing, the second applicant clarified that her religion had been Catholic until she married her Muslim husband, and she has now converted to the Islamic faith. She said that she before she married her husband she knew that he was a Muslim and she married him because if she had to return to Malaysia, then her child would have a father’s name on the birth certificate. The second applicant now claims that she fears returning to Malaysia because she converted from Catholic to Muslim. For the reasons canvassed later in these Reasons, this claim was not raised with the delegate before the primary decision was made.
Delegate’s assessment and decision
In undertaking an assessment of the applicants’ application, the delegate was not satisfied that they were refugees as defined by section 5H(1) of the Act, and therefore the delegate was also not satisfied that they were persons in respect of whom Australia has protection obligations as outlined in section 36(2)(a) of the Act. Nor was the delegate satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed to Malaysia, there was a real risk they would suffer significant harm as defined in section 36(2A) of the Act. Therefore the delegate was satisfied that the applicants were not persons in respect of whom Australia has protection obligations as outlined in section 36(2)(aa) of the Act.
On 14 December 2018 the delegate sent a letter to the applicants advising them that their application had been refused. They were provided with a copy of the delegate’s decision record.
Review application and subsequent matters leading to the review hearing
On 3 January 2019, the applicants filed their review application with the Tribunal. At that time, both applicants were in Australia and they provided the Tribunal with a copy of the delegate’s decision record. On the same day their review application was lodged, the Tribunal dispatched an email to them enclosing a letter which outlined:
It is important that you:
·    tell us immediately if you change your contact details (such as your residential address, mailing address, telephone number, fax number or email address). If you have a representative or authorised recipient, it is also important that you inform them of any change in your contact details. If you do not, you might not receive an invitation to a hearing or other important information and your case may be decided without further notice;
·    tell us immediately if your personal circumstances change and this is relevant to the review of the decision;
·    use your case number 1900132 when you contact us.
If you wish to provide material or written arguments for us to consider, you should do so as soon as possible.
As time progressed, the applicants did not provide to the Tribunal any material or written arguments relating to their protection claims. On [date] April 2020, the first applicant departed Australia and returned to Malaysia. The second applicant remained onshore in Australia.
Pursuant to section 424A of the Act, on 13 February 2024 the Tribunal sent separate letters to both applicants (‘section 424A invitation’). In those letters, each applicant was invited to comment on or respond to certain information in the Tribunal’s possession which the Tribunal considered would, subject to their comments or response, be the reason, or a part of the reason, for affirming the decisions under review. In great detail, that certain information was outlined to them and they were advised that they should note that by the Tribunal providing that information to them, the Tribunal had not at that time made up its mind about the information. That certain information is outlined and discussed later in these Reasons.
In addition to the certain information, the Tribunal explained to both applicants that the Tribunal was in possession of certain information from the Department of Home Affairs which indicated that the migration records for the first applicant showed that he has not been in Australia since [date] April 2020. It was explained to them that section 36(2) of the Act requires that an applicant for a protection visa must be a non-citizen in Australia., and this means that a protection visa can only be granted if an applicant is in Australia. It was further explained to them that this information is relevant to the review because if the information is true, then the first applicant cannot be granted a protection visa.
In proving that section 424A invitation to the applicants, they were advised that their comments or response should be received by the Tribunal by 28 February 2024. If the comments or response are in a language other than English, they must be accompanied by an English translation from an accredited translator. They were also advised that if they could not provide their written comments or response by that date, then they could ask the Tribunal for an extension of time in which to provide their comments or response, and if they were to make such a request for an extension of time, it must be received by the Tribunal by 28 February 2024 and they must state the reason why the extension of time is required.
It was also explained to them that if the Tribunal did not receive their comments or response within the period allowed or as extended, then a discretion was available for the Tribunal to make a decision on the review without taking any further action to obtain their views on the certain information. It was explained to them that they would then lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and present their arguments.
The Tribunal provided to the second applicant the certain information that was available to the Tribunal which revealed the availability of disability services in Malaysia. The information indicated that there are support services such as the Malaysian Information Network on Disabilities, also known as MIND4. MIND4 provides pre-employment training programmes to help prepare people with disabilities for work. This gives people with disabilities a better chance to secure gainful employment, especially those dependent on others for financial help, employment is an important way to gain economic independence. Employment opportunities can be found in various sectors in Malaysia such as the Government, private businesses, Non-Governmental Organisations (NGOs) or self-employment.
The certain information also described that for over 20 years in Malaysia, both the Government and NGOs have implemented various programmes to empower people with disabilities and this bolsters a disabled person’s sense of usefulness to society as a form of therapy. In practice, many employers have taken advantage of the situation and have provided insufficient remuneration for work done to the tune of MRY 2.00 to MYR 5.00 a day. This hardly covers the cost of transport and meals, which are instead provided by parents or care-givers, government funding and donations.
The United Nations Convention on the Rights of People with Disabilities and its Optional Protocol was signed and ratified by Malaysia in May 2008. The Convention is intended to change the general misconception of viewing persons with disabilities as “objects” of charity but rather as “subjects” with rights. It is promotes that people with disabilities should have the right to make decisions based on their free and informed consent while being active members of society.
The wide spectrum of people with disabilities are entitled to gain from the provisions of the United Nations Convention on the Rights of People with Disabilities, and in accordance with the ratification, Malaysia will gradually discontinue the old approach of providing special facilities for people with disabilities. This is due to the systematic deprivation of academic and/or vocational education to people with disabilities. Now a more inclusive approach will be implemented to for people with disabilities to access open employment on the same level as the general populace.[24]
[24]MIND4, Malaysian Information Network on Disabilities, accessed 3 April 2024.

The Tribunal went on to explain that it had to its availability certain information in the form of reliable and credible country information about Malaysia in regard to Malaysia’s economy. That certain information contained within the DFAT Country Information Report (‘DFAT report’) showed that the World Bank classifies Malaysia as an upper middle-income, export-oriented economy. According to the World Bank, following the Asian financial crisis of 1997-98, Malaysia’s economy was on an upward path, averaging growth of 5.4 per cent from 2010. Malaysia’s progression from an upper-middle income economy to high-income status, according to the World Bank’s measure, had been anticipated to occur between 2024 and 2028. The DFAT report also provides that Malaysia’s economic performance over several decades has led to a significant reduction in poverty, with the share of households living below the national poverty line falling from over 50 per cent in the 1960s to less than 1 per cent in 2021. Further to that, with respect to the prospects of employment in Malaysia, in February 2021, the Malaysian Department of Statistics reported a labour force participation rate of 68.5 per cent and an overall unemployment rate of 4.8 per cent. Prior to the COVID pandemic, Malaysia’s unemployment rate was 3.3 percent in 2019.[25]
[25]The DFAT Country Information Report, Malaysia, 29 June 2021, pages 10 to 11, paragraphs 2.9 to 2.12.
The above country information indicates Malaysia’s economy has been growing at a steady rate over the past few decades and the medium to long-term economic outlook is positive. Country information also indicates the authorities have turned their attention to reducing poverty and improving the lives of citizens. The economic climate in Malaysia affects everyone and I find that any economic hardship the applicant may suffer on their return does not amount to significant harm.
The Tribunal notes that the first applicant did not provided any comment or response to the section 424A invitation, however the second applicant did respond and make comments. The Tribunal will return shortly to her response and comments.
On 16 February 2024, the Tribunal dispatched an email to the applicants which enclosed an invitation (‘hearing invitation’) in regard to a hearing scheduled on 8 April 2024. Enclosed with that hearing invitation was a Response to hearing invitation template. The Tribunal requested that the template be completed and returned, however the template has never provided to the Tribunal.
Returning to the second applicant’s comments and response to the section 424A invitation, on 21 February 2024 she sent an email to the Tribunal which contained the following:
My name is [second applicant’s name]. I am replying this email on behalf of my father, [first applicant’s name] and myself.
On the beginning of our move to Australia, my father and I was living together in South Adeladie. After some time working in South Adeladie, I decided that it would be best for me to venture on my own, hence why I made the decision to move to Queensland alone, leaving my father in South Adeladie. After moving and settled myself, I was able to focus more on my self growth and was able to meet more [disabled] people from the [disabled] community to which what I really need and consent my father about why I really need to venture out from South Adeladie. I do understand that my father was worried but I confides him that I will be okay venturing out alone because I need to seek my own self confident. Moving out from one place to another had helped me find new opportunities and I am able to completely be independent.
My father has not been in Australia since [date] April 2020 due to the uncertainty of the covid-19 pandemic my father decided to leave Australia and fly back to Malaysia. He was working around [a region] but once the pandemic got worse overtime, my father was deeply worried that he would risk his living in Australia not being employed in the months to come. As the head of the family and being old, he decided to go back to Malaysia to look after the family in case the situation in Malaysia would get worse.
During that time, I was safe, had enough savings and I was confident that staying in Australia was the best choice for me, hence I decided to stay. I understand my family's concern at the time of the pandemic but I was confident that I was able to overcome the situation well and will have a good quality of life in Australia.
I am a person with [Disability 1], although Malaysia has many organisations that supports person with disabilities throughout Malaysia, my family and I was staying at remote area and for us, to get support and reach from the organisation was just out of reach especially we as the indigenous of Borneo. And this makes me depressed. I am dying inside because the life pressure I felt that nobody will understands. I an the only person with disability in the family and this makes me everyday overthinking about myself hurting inside longing for better life and what different could it be to have life surrounds with the sane people like me.
After some times, I heard from friends that Australia is a better place for people like us. That was why I decided to come to Australia provided my father only to accompany me as the legal guardian. I was still young ar the time. Even though I have disabilities, I am still fit to work and able to be employed. The companies my contribution despite the challenges that I face.
When carefully considering the second applicant’s comments and response, she did not specifically respond of comment to the certain information discussed within the section 424A invitation. The Tribunal is satisfied that she has not addressed the certain information provided to her in the section 424A invitation and no weight is given to her response in the determination of this matter.
In support of her position within their application, on 27 March 2024 the second applicant provided the Tribunal with copies of a number of documents described as follows.
(a)Queensland Health documents (nine pages) relating to the second applicant’s hospitalisation for the birth of her child born on [date], as well as discharge summary records;
(b)[health assessment] (three pages) dated 22 September 2021 for the second applicant’s child;
(c)Personal health record (single page) for the birth of the second applicant’s child;
(d)Form MR6 dated 26 March 2024 (two pages) relating to a change in contact details for the second applicant;
(e)Letter (single page) from the Department to the second applicant dated 21 June 2021 relating to the granting of a Bridging visa for her child;
(f)Registered Queensland Birth certificate (single page) for the second applicant’s child dated 21 June 2022;
(g)Registered Queensland Marriage certificate (singe page) dated 21 June 2022 relating to the second applicant’s marriage to her husband on [date] October 2021;
(h)Certificate of Marriage (two pages) relating to the second applicant’s marriage to her husband on [date] October 2021;
(i)Islamic Marriage Certificate (single page) dated 22 July 2020 relating to the second applicant’s marriage to her husband;
(j)Islamic Marriage Contract (single page) dated 22 July 2020 relating to the second applicant’s marriage to her husband;
(k)Income summaries and ATO Notices of Assessment for the financial years ending 2021 and 2022 (14 pages) for the second applicant;
(l)Centrelink documents (three pages) dated 10 November 2023 relating to the second applicant;
(m)Certificate of Achievement (single page) dated 20 December 2023 relating the second applicant completing a “Pathway to Safer Driving’ program;
(n)Queensland Health and Safety Construction Induction card (single page) dated 16 May 2022 for the second applicant;
(o)Queensland Government Photo Identification Card (single page) for the second applicant;
(p)Queensland Government issued Driver Licence (single page) for the second applicant;
(q)Medicare Immunisation history (single page) for the second applicant;
(r)Pharmacy immunisation statement (single page) dated 1 November 2022 for the second applicant;
(s)Medicare letter (single page) dated 2 December 2021 for the second applicant;
(t)Medicare letter (two pages) dated 31 August 2023 for the second applicant;
(u)Identification page (single page) from the second applicant’s passport;
(v)A number of payroll advice documents (six pages) relating to the second applicant’s employment;
(w)[A] Pathology document (single page) dated 3 January 2024 for the second applicant;
(x)Ultrasound report and imagery (there pages) printed [date] 2024 for the second applicant; and
(y)Bank statement (12 pages) for an account held in the name of the second applicant.
When assessing and considering the contents of the material she provided, the Tribunal is satisfied that the material more so relates to the second applicant’s domestic situation, including her employment and achievements since being in Australia. The Tribunal is not satisfied (and so finds) that the material adds no probative value to the protection claims or the application for a Protection visa and they are rendered to one side and given neutral weight.
The review hearing
Because of her disability, particular attention was taken in ensuring that the second applicant specifically understood the nature of the review process and the questions the Tribunal asked her. Particular attention was also made to ensure that her responses related to the questions being asked.
When asked why she and her father had travelled to Australia, she said that it was because she was the only child in the family with a disability, her father wanted to show her that she is able to do things for herself and that is why they came to Australia. She was then asked if she was persecuted in Malaysia for reasons of her race, religion, nationality, membership of a particular social club or her political opinion, she said that she had not been harmed in Malaysia for any of those reasons, and she does not think that she would be harmed in the future for any of those reasons within section 5J(1). She described it as her just not being happy with her life in Malaysia and although she had been working with some [people who did not have her disability], there was not any opportunities provided to her and her life was very difficult. She accepted that her difficulties living in Malaysia were because of her disability, not for any of those reasons as described in section 5J(1).
Because she had provided documentation to the Tribunal prior to the hearing which indicated that she had married her husband in July 2020, and she gave birth to their child in [date], lengthy discussions with her took place surrounding her current domestic situation. She told the Tribunal that when she lived in Malaysia and prior to marrying her husband, she was a Christian of the Catholic faith. Because her husband is a Muslim from Kuala Lumpur, she converted to Islam when she married him. She said her husband was [name], born [date] in Malaysia and they were still in a relationship and lived together in [City 1].
She acknowledged that she was well aware that her husband had previously been married and that he was a Muslim before she married him. She married him because she was pregnant with their first child at the time. They are still in a relationship and she is expecting their second child in [month, year]. She claimed that her husband is also [disabled], and like her, he was not born with that disability, he developed an illness as a [child]. She said that her husband was not an Australian citizen, but was a citizen of Malaysian. When asked what visa he had, she said that she thought that he had the same visa as hers, and she had a Bridging visa. When asked if she knew whether her husband had any pending applications with the Department or the Tribunal, she said that there were none that she knew of.
New claim
The applicant then raised a new claim. She said that she feared returning to Malaysia as she would be persecuted because of her religion. As already explained, she was previously a Christian of the Catholic faith and when she married her husband, he is a Muslim and she converted to Islam. The Tribunal notes that she had previously provided a Marriage Registration Certificate, a Certificate of Marriage, an Islamic marriage certificate and an Islamic marriage contract. The Tribunal accepts and finds that she is married to her husband and that he is a Muslim. The Tribunal also accepts and finds that she has converted her religion to now being a Muslim.
In assessing the new claim, the Tribunal gave consideration to section 423A of the Act which provides that because the second applicant had raised a claim that was not raised with the delegate and presented evidence which was not presented to the delegate prior to the delegate’s decision being made, the Tribunal is to draw an unfavourable inference as to the credibility of the claim and evidence, if the Tribunal is satisfied the second applicant did not have a reasonable excuse why the claim was not raised, or the evidence was not presented earlier.
The Tribunal has carefully considered the available evidence as already provided in these Reasons, the Tribunal accepts that the second applicant married her husband in July 2020. The delegate’s decision in this matter was made well before she married her husband, and as such, the claim and the evidence was not available to be presented to the delegate at that earlier time. Therefore, the Tribunal is satisfied that a reasonable excuse exists why that claim and the evidence was not brought to the attention of the delegate.
Returning to her explanation about the religious claim, she said that she was forced to marry her husband. When asked to clarify that, she said that she felt that she was forced to marry her husband because if she did not marry him, her son would not a father’s name on the birth certificate. She went on to tell the Tribunal that in Malaysia, it is a requirement for a father’s name to be included on a child’s birth certificate as it is not allowed to have the child to have the same last name as the mother. She also claimed that all her family are Christians and they were racist towards Muslims. She went on to tell the Tribunal that before she married her husband, she knew that he was a Muslim and she found this out when she became pregnant.
When asked where she got her information that she could not return to Malaysia because she had changed religions and converted from Catholic to Muslim, she said that she knows the religious laws in Malaysia quite well. When asked that if she knew this quite well, why did she marry a Muslim knowing that if she returned she would have difficulties. Her response was to outline what she had said about needing the father’s name to be on her chilsd’s birth certificate.
Because the second applicant was appearing before the Tribunal,[26] pursuant to section 424AA of the Act, the Tribunal exercised its discretion to give her clear particulars of certain country information in the Tribunal’s possession which the Tribunal considered would be the reason, or a part of the reason, for affirming the decision that is under review. That information was contained within various items of country information.
[26]Subject to the provisions of the Migration Act 1958 (Cth), s 425.
In giving her clear particulars of that information, the Tribunal, as far as was reasonably practicable, made sure she understood why the information was relevant to the review, and the consequences of the information being relied on in affirming the delegate’s decision. The second applicant was invited to comment on or respond to the information and she was also advised that she may seek additional time to do so, and if she did, then the Tribunal would adjourn the proceedings for a reasonable time to allow her that additional time. The applicant declined the invitation and opportunity for that additional time.[27]
[27]Migration Act 1958 (Cth), s 424AA.
It was then outlined to the second applicant that Christians practice freely and generally do not experience discrimination in Malaysia.[28] Malaysian Christians are typically able to practise their religion without interference and generally do not experience societal discrimination.[29] Mixed marriages are common in Malaysia and in 2019 they accounted for 9 percent of all registered marriages marking a gradual increase from previous years.[30] Malaysia’s civil marriage law does not prohibit mixed marriages amongst non-Muslims but syariah law stipulates that a non-Muslim must convert to Islam before marrying a Muslim.[31] Mixed marriages between persons of different ethnicity or religious background is commonplace in Malaysia and society is generally receptive to these unions.[32] Sometimes family members are apprehensive about mixed marriage for reasons such as unfamiliarity or negative stereotypes towards other ethnicities or religions.[33] Similarly, family members sometimes oppose marriages that involve conversion to Islam for reasons such as negative perceptions of Islam and apprehension about syariah law.[34] In some instances, family opposition to mixed marriage may change over time, such as with the birth of a child.[35]
[28]Launching of Report on the Key Findings Population and Housing Census of Malaysia 2020, Department of Statistics Malaysia, 13 February 2022, page 9, accessed 3 April 2024.
[29]The DFAT Country Information Report, Malaysia, 29 June 2021, page 30, paragraph 3.58.
[30]Marriage of cultures can spawn unity, The Malaysian Reserve, Wei SL, 18 August 2020 accessed 3 April 2024; Interfaith Marriage and Religious Conversion: A Case Study of Muslim Converts in Sabah, Malaysia, Khadijah Mohd Hambali, University of Malaysia, November 2011, pages 8-12, accessed 3 April 2024.
[31]The DFAT Country Information Report, Malaysia, 29 June 2021.
[32]A truly 'muhibbah' CNY for two couples, New Straits Times, Perimbanayagam K, 24 January 2020, accessed 3 April 2024.
[33]Interfaith Marriage and Religious Conversion: A Case Study of Muslim Converts in Sabah, Malaysia, Khadijah Mohd Hambali, University of Malaysia, November 2011, pages 8-12, accessed 3 April 2024.
[34]Interfaith Marriage and Religious Conversion: A Case Study of Muslim Converts in Sabah, Malaysia, Khadijah Mohd Hambali, University of Malaysia, November 2011, pages 8-12, accessed 3 April 2024.
[35]Marriage of cultures can spawn unity’, Bernama, 18 August 2020. Marriage of cultures can spawn unity, The Malaysian Reserve, Wei SL, 18 August 2020 accessed 3 April 2024
Her response was to maintain her earlier claims about having a fear of returning to Malaysia because of her religion. The Tribunal is not satisfied that her explanations why she fears experiencing serious harm in Malaysia because she converted from Catholicism to being a Muslim meets the threshold of persecution and the Tribunal places greater weight on the available country information as opposed to the claims made by the applicant’s in her evidence.
CONCLUSION AND REFUGEE FINDINGS

Under section 65(1) of the Act, a visa may be granted only if the Tribunal is satisfied that the prescribed criteria for the visa have been satisfied. The first applicant departed Australia on[date] April 2020 and returned to Malaysia and he does not hold a current visa. So far as it is relevant to the first applicant, section 36(2) of the Act provides that a criterion for the granting of a protection visa is that the applicant for the visa is a non-citizen in Australia (emphasis added). This means that a protection visa may only be granted to the first applicant if he is in Australia.
The first applicant’s immigration records provided by the Department to the Tribunal indicate that he is not in Australia. He left Australia on[date] April 2020 and he does not hold a current Australian visa. The Tribunal wrote to him on 13 February 2024 advising him that the Department’s records showed that he was not in Australia and did not have a visa that enabled him to return, and as such he could not be granted a Protection visa. He was invited to comment on that information by 3 April 2024, however he did not respond to the Tribunal.
In her response to the section 424A invitation, the second applicant told the Tribunal that the first applicant had returned to Malaysia. She clarified this when giving her oral evidence at the review hearing. Therefore, the Tribunal is satisfied from the circumstances set out above that the first applicant is not in Australia and therefore he does not satisfy the requirements of section 36(2) of the Act and cannot be granted a Protection visa.
Having reached that conclusion, it is necessary for the Tribunal to consider the applicants’ substantive case for the grant of a Protection visa to the second applicant as she is currently in Australia. The definition of a refugee as provided within section 5H(1) of the Act explains that a refugee is a person who is outside their country of nationality or former habitual residence and is unable or unwilling to avail themselves of the protection of their country of nationality or to return to their country of former habitual residence due to a well-founded fear of persecution. The term ‘well-founded fear of persecution’ is defined in section 5J of the Act, and includes a requirement in section 5J(1)(a) of the Act that the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion.
The issue in this case is whether there were substantial grounds for believing that, as a necessary and foreseeable consequence of the second applicant being removed to Malaysia, there exists a real risk that she will suffer significant harm or there is a real chance that she would suffer serious harm; and whether she is a person in respect to whom Australia has protection obligations as defined in the Act.[36]
[36]Migration Act 1958 (Cth), s 36(2).
The mere fact that the second applicant claims she has a fear of persecution for a particular reason does not establish either the genuineness of her asserted fear or that it is well-founded or that it is for the reason claimed. Similarly, because the second applicant claims she faces a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to significant harm. It remains for the second applicant to satisfy the Tribunal that all the statutory elements are made out. The Tribunal is satisfied (and so finds) that notwithstanding the significant amount of documents she provided to the Tribunal on 27 March 2024, those documents are not probative to the protection claims relied upon and she has not provided any evidence or information to support those protection claims.
Importantly, the Tribunal is not required to make the applicant’s case for her. It is her responsibility to specify all particulars of her claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim.[37] Nor is the Tribunal required to accept uncritically any and all the allegations made by the applicant.[38]
[37]Migration Act 1958 (Cth), s 5AAA.
[38]Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559, 596; Re Bineshri Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155, 169–170.
Specifically outlined in paragraphs 18 and 19 of these Reasons are the original claims expressed by the applicants when they lodged their application with the Department, and the second applicant has subsequently made further explanation as to her protection claims. She now claims that she cannot return to Malaysia because she converted from Christianity to being a Muslim when she married her husband. She married her husband because she was pregnant and for the benefit of her child if she converted to Islam so that her child could have her husband’s name on the child’s birth certificate. She also claimed that her family are racist, implying that her marriage to a Muslim would not be accepted by her family. As already identified in these Reasons, Christians are typically able to practise their religion without interference and generally do not experience societal discrimination, and mixed marriages are common in Malaysia with mixed marriages between persons of different ethnicity or religious background is commonplace in Malaysia and society is generally receptive to these typed of unions. Sometimes family members are apprehensive about mixed marriage for reasons such as unfamiliarity or negative stereotypes towards other ethnicities or religions.
The Tribunal has given very careful consideration in regard to the second applicant’s claims that if she returned to Malaysia, she will be subjected to serious harm and persecuted for reasons of her conversion away from Christianity to being a Muslim. The Tribunal understands the second applicant’s evidence to be that she knows that she will be harmed because she is aware of the religious laws of Malaysia. However, the Tribunal is aware that the credible and reliable information discussed earlier in these reasons is contrary to what she claims. When closely examining her original claims, and then country information, the Tribunal is not satisfied (and so finds) that if she returned to Malaysia her marriage to a Muslim will be accepted and she will not be subjected to persecution for reasons relating to her religious beliefs. Therefore, that claim is rejected.
When carefully assessing the initial claims made by the those claims expressed within the original application for a Protection visa, and weighing them against the criteria of a refugee, the Tribunal is satisfied (and so finds) that those claims do not relate to any of the other reasons provided in section 5J(1)(a) of the Act and there is no other information before the Tribunal to suggest that she will be subject to harm upon her return to Malaysia for one or more of the reasons relating to her race, nationality, membership of a particular social group or political opinion.
After careful consideration of the material available and the second applicant’s oral evidence and arguments at the review hearing, the Tribunal is not satisfied that she has a well-founded fear of persecution as she does not fear being persecuted for reasons of her race, religion, nationality, membership of a particular social group or political opinion as required by section 5J(1)(a) of the Act. Therefore the Tribunal is not satisfied that she is a refugee as defined in section 5H(1) of the Act and accordingly, the Tribunal finds that she is not a person in respect of whom Australia has protection obligations as provided for in section 36(2)(a) of the Act.
COMPLEMENTARY PROTECTION CONSIDERATIONS
Having already concluded that the second applicant does not meet the refugee criterion as provided by the Act,[39] the Tribunal has considered the alternative criterion.[40] In considering the alternative criterion, an assessment was undertaken as to whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the second applicant being removed to Malaysia, there is a real risk that she will suffer significant harm as it is defined in the Act.[41] Significant harm is defined within section 36(2A) of the Act as:
(a)the person will be arbitrarily deprived of his or her life;
(b)the death penalty will be carried out on the person;
(c)the person will be subjected to torture;
(d)the person will be subjected to cruel or inhuman treatment or punishment; or
(e)the person will be subjected to degrading treatment or punishment.
[39]Migration Act 1958 (Cth), s 36(2)(a).
[40]Migration Act 1958 (Cth), s 36(2)(aa).
[41]Migration Act 1958 (Cth), s 36(2A).
Section 36(2)(aa) of the Act provides that the relevant risk threshold in assessing complementary protection is that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the second applicant’s removal from Australia, there is a real risk that she will suffer significant harm if returned to Malaysia. The Courts have adopted the principle that test for ‘real risk’ test imposes the same standard as the real chance test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition.[42]
[42]Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33.
Real chance was discussed in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 and the High Court said the expression ‘a real chance’ clearly conveys the notion of a substantial, as distinct from a remote chance, of persecution occurring.[43] The question of ‘real chance’ is the test to be applied on an application for a protection visa under the Act when considering whether the applicant has a well-founded fear that they will face persecution for a Convention reason if returned to their country of nationality.[44] A person’s fear of persecution must be well-founded on the basis that there is a real chance that they will be persecuted if they return to their country of nationality. A real chance is one that is not remote, regardless of whether it is less or more than fifty per cent.[45]
[43]Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 citing Boughey v The Queen (1986) 161 CLR 10, 21.
[44]Migration Act 1958 (Cth), s 36(2)(a); Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 citing Regina v Home Secretary; Ex parte Sivakumaran (1988) AC 958.
[45]Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379.
In regard to the criteria of complementary protection, the Tribunal observes that the second applicant has not claimed that she will be arbitrarily deprived of their life, the death penalty will be carried out on her or that she will be subjected to torture and there no information or evidence to indicate that she would suffer any of these forms of ‘significant harm’ as defined in section 36(2A)(a)-(e) of the Act if she returned to Malaysia.
When carefully assessing her oral evidence and arguments at the review hearing, and weighing that evidence against the reliable and credible country information, the Tribunal is not satisfied the harm the applicant fears could constitute either of the forms of significant harm as defined in section 36(2A)(a)-(e) of the Act. It is clear from the evidence in this matter that the second applicant has not claimed that she will be arbitrarily deprived of her life, or that the death penalty will be carried out on her or that she will be subjected to torture. Further to this, there is no information or evidence made available to the Tribunal to indicate that she would suffer any of these forms of ‘significant harm’ as defined in section 36(2A) of the Act if she returned to Malaysia such as being subjected to torture; or cruel or inhuman treatment or punishment; or degrading treatment or punishment.
When carefully assessing the material available, the Tribunal is not satisfied that the claims raised by the applicant about economic hardship amounts to ‘significant harm’ as defined within section 36(2A) of the Act, and if such economic hardship did exist, then the real risk is one which is generally faced by the population of Malaysia and is not specifically targeted towards the second applicant.
Upon very careful consideration of the country information and the applicants’ claims, the Tribunal has already assessed that there would not be a real chance of the second applicant experiencing harm in Malaysia on account of her race, religion, nationality, membership of a particular social group or political opinion. Taking into all account the reliable and credible country information, the ‘real risk’ and ‘real chance’ involve the application of the same standard, and the Tribunal is not satisfied that he would not face a real risk of significant harm in Malaysia for the reasons she claims.
In conclusion, the Tribunal is not satisfied on the material before it that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the second applicant being removed to Malaysia, there is a real risk that she will suffer significant harm as defined in section 36(2A) of the Act, and nor is the Tribunal satisfied that she is a person in respect of whom Australia has protection obligations as provided for in section 36(2)(aa) of the Act.
CONCLUSION: REFUGEE CRITERION
Having considered all the circumstances as they apply individually and cumulatively to the second applicant, the Tribunal finds that there is not a real chance she will be persecuted for reasons of race, religion, nationality, political opinion or membership of a particular social group if she returned to Malaysia. The Tribunal finds that her fear of persecution is not well-founded as required by section 5J of the Act and, therefore, she is not a refugee within the meaning of section 5H of the Act.
CONCLUSION: COMPLEMENTARY PROTECTION CRITERION
Having considered all the circumstances as they apply individually and cumulatively to the second applicant, the Tribunal finds there are not substantial grounds for believing that as a necessary and foreseeable consequence of her being removed from Australia to Malaysia, she will be exposed to a real risk of suffering significant harm.
OVERALL CONCLUSION
The Act provides that a visa may be granted only if the Tribunal is satisfied that the prescribed criteria for the visa have been satisfied.[46] The first applicant departed Australia on [date] April 2020 and returned to Malaysia and he does not hold a current visa. Section 36(2) of the Act provides that a criterion for the granting of a protection visa is that the applicant for the visa is a non-citizen in Australia. He is not in Australia and therefore cannot be granted a visa.
[46] Migration Act 1958 (Cth), s 65(1).
In regard to the second applicant, for the reasons explained above, the Tribunal is not satisfied that she is a person in respect of whom Australia has protection obligations under section 36(2)(a) of the Act. Having concluded that she does not meet the refugee criterion in section 36(2)(a) of the Act, the Tribunal considered the alternative criterion in section 36(2)(aa) and is not satisfied that she is a person in respect of whom Australia has protection obligations under section 36(2)(aa) of the Act.
There is no suggestion that the second applicant satisfies section 36(2) based on being a member of the same family unit as a person who satisfies section 36(2)(a) or section 36(2)(aa) of the Act and who holds a protection visa. Accordingly, she does not satisfy the criteria in section 36(2) of the Act.
DECISION
The Tribunal affirms the decision not to grant the applicants Protection visas.
Wayne Pennell
Senior Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2024] AATA 2486

8 April 2024

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